There are different mechanisms in the Probate Court to transfer property after a person passes away. The most common mechanisms in Georgia are the Petition to Probate Will in Solemn Form and Petition for Letters of Administration.
Petition To Probate A Will In Solemn Form
When a person dies who had previously made a will, this Will is not automatically “in effect.” There is a court process that must happen before the will can be fulfilled. An executor named in the will has the responsibility to make sure the Will of a deceased person is filed in the Probate Court. A Petition to Probate Will in Solemn Form is the legal form an executor must submit to the Probate Court to begin the process of probating a will. This petition tells the Court the name of the deceased, the date of death, all heirs, and potential heirs who have passed away.
Petition For Letters Of Administration
If a person dies without a will, then their estate will pass through what is called “intestate succession.” This means that the Georgia Code determines the heirs. If a person has a wife and children, the estate would pass to the spouse and children in a ratio set by statute. The mechanism to transfer this property is called a Petition for Letters of Administration. A person seeking to become the administrator will file this Petition in Probate Court so they can be appointed the Administrator. This petition will also tell the Court the name of the deceased, the date of death, all heirs, and potential heirs who have passed away.
Duties of Executors and Administrators
If you are named in a will to serve as the executor of the estate, settling the estate is your responsibility. If probate is necessary, you need to request that the court appoint you as the estate’s personal representative (or PR). Without a will, or if the named executor in a will can’t be found or is unwilling to serve, the Probate Court will appoint an alternate executor who performs the same job.
A PR needs to keep careful records of assets and expenditures and cannot use any funds for his or her own use. Spending must be in accordance with state and federal laws. In case a debtor, heir or beneficiary disputes a PR’s handling of an estate, legal action can be filed in the Probate Court. This would most likely result in an accounting by the PR to show assets and debts have been properly handled.
If there are not enough estate assets to pay all debts, the PR must prioritize claims based on state law. The surviving spouse and children under the age of 18 are entitled to a year’s support. Funeral expenses, probate costs, expenses to treat the last illness and taxes come next.
The PR needs to file final state and federal income tax returns for the deceased. The estate itself may also need to file income tax returns if it receives income.
If the debts and taxes are paid, assets can be distributed to next of kin per state law (if no will) or to the beneficiaries in the will. Once all that’s done, a Petition for Discharge can be filed with the court and this is how the PR asks to be relieved of his or her duties to the Estate. If the court decides the PR has performed all required duties, the discharge will be granted; this means the estate is closed and the PR is released from any liability.
Helping Those Who Can’t Help Themselves
Probate Court deals not only with the deceased but with the living as well. It presides over the appointment and supervision of guardians and conservators of adults found to be incapacitated due to physical or mental illness; these are called proposed Wards. Such appointments are made if the proposed Ward’s condition is such that the individual is no longer able to make reasonable and rational decisions about his or her care or manage his or her finances and property. A Petition for Guardianship is an extreme measure and one that cannot be taken lightly. When someone is under Guardianship or Conservatorship, this means they are not legally capable of caring for themselves. The Guardian becomes responsible to the Court for their welfare and care.
If you or a family member need to have an issue decided in probate court, contact Alderman & Hutcherson today. We can talk about the problem you are facing, the laws and procedures that apply and how we can help. Use our convenient online inquiry form or call (478) 476-9110 to speak with an experienced Georgia probate attorney.